General terms and conditions

These terms and conditions contain the general provisions (AV 2017 CED) applicable to all agreements governed by these terms and conditions as well as provisions which, in addition to the general conditions, are applicable to agreements about specific services.

Article 1 - General

1.1 'Client' in these general terms and conditions means any (legal) person, legal entity in incorporation or partnership of persons with which CED wishes to enter or enters into an agreement as well the competent representative(s) of such (legal) person, legal entity in incorporation or partnership of persons, such as a fiduciary or fiduciaries, authorised representatives, agent(s), assignee(s) or heirs.

1.2 'Agreement' in these general terms and conditions shall mean an agreement or assignment with regard to services to be provided by CED.

Article 2 - Application

2.1 These general terms and conditions are applicable to all tenders, quotes and agreements and to the formation of agreements and the implementation thereof. The general terms and conditions apply to CED Holding B.V. (CED) as well as those of its subsidiaries which have declared that these general terms and conditions apply to them.

2.2 The applicability of any terms and conditions of the client is excluded unless and insofar as CED expressly and in writing agrees to such conditions in the agreement. Deviation from these general terms and conditions should also be agreed expressly and in writing by CED.

Article 3 - Tenders and quotes

3.1 All offers, quotes and information including cost estimates, plans, catalogues and other documents provided by CED are intended exclusively for the addressee and are provided completely without obligation unless otherwise stated.

3.2 If the client accepts an obligation-free offer, CED has the right to cancel such offer within ten working days of receiving such acceptance. Agreement between the parties is established by client's acceptance of the offer, unless CED cancels the offer as provided in the preceding sentence.

Article 4 - Agreement

4.1 CED will send an order confirmation to the customer on formation of the agreement pursuant to article 3.2.

4.2 The order confirmation contains the essential elements of the agreement and must be signed by the client and returned without delay.

4.3 If there is more than one client, each of them will be jointly and severally liable for fulfilment of the obligations arising from this agreement.

4.4 The client is obliged to inform CED about facts or circumstances which may affect the implementation of the agreement, insofar as it knows or ought to know them.

4.5 The choice of third parties to be engaged by CED will be made, where possible, in consultation with the client and with due care. CED is not liable for the defaults of such third parties.

4.6 The duration of an agreement is as stated in such agreement. Unless timeously terminated in accordance with article

4.7 such agreement shall thereafter be deemed tacitly and automatically renewed under the same terms and provisions as originally agreed between the parties. CED reserves the right to re-open negotiations with regard to the terms and conditions following such tacit renewal.
4.7 Termination of an agreement must be made by registered letter before the end of the agreed contract period and with a minimum notice period of 3 months.

Article 5 - Prices / rates

5.1 Unless otherwise stated, our prices are:
- exclusive of VAT and other levies and taxes;
- calculated in euros;
- exclusive of (potential) travel and subsistence expenses and advances associated with the implementation of the agreement.

5.2 Remuneration in agreements between CED and the client may be on the basis of an hourly fee, a commission agreed in advance between the parties, a fixed fee, or as otherwise agreed including remuneration agreements not otherwise provided in these general terms and conditions. This to enable, inter alia, the taking into account of the content, scope and purpose of the agreement.

5.3 CED reserves the right to raise prices as set out in article 5.1 if there is an increase in the cost price of implementing the agreement, provided that three months have passed since its inception.

Article 6 - Invoicing and payment

6.1 Payment of an invoice is constituted by a bank transfer or deposit of the amount due on a bank account designated by CED, without recourse to compensation, suspension or deduction.

6.2 Cash or any means of payment other than mentioned in the preceding article is thus only possible when such is designated or agreed to by CED.

6.3 The period for payment of invoices, interim invoices and/or invoices for costs incurred in implementing the order, as sent by CED to the client, is 14 days after invoice date unless expressly and in writing otherwise agreed by the parties or unless a different payment period is stated on the invoice.

6.4 The value date on CED's bank statements is determinative and consequently functions as payment date.

6.5 All payments made by the client are first applied to settle any interest, collection costs incurred by CED and damages and thereafter to settle the oldest outstanding invoices.

6.6 The client is legally in breach on expiry of the payment period provided in article 6.3 and further notice of breach is consequently not required.

6.7 On expiry of the payment period, CED is entitled, without further notice of breach, to commence proceedings for recovery of the amount owed.

Article 7 - Interest and costs

7.1 If the client is in breach, CED will impose a late payment interest of 8% per annum, without prejudice to its rights in law or under the agreement. If the statutory interest rate is at any time higher than the interest rate provided in the preceding sentence, the statutory interest rate will apply instead of the interest rate so provided.

7.2 If the client remains in breach with regard to its payment obligations, all legal costs actually incurred as well as the extrajudicial collection costs will be for the client's account. The extra-judicial collection costs amount to at least 15% of the amount due by the client (including the interest mentioned in article 7.1), with a minimum of 200 euros.

Article 8 - Client information

8.1 The client is obliged to inform CED fully and correctly of all facts and circumstances relevant to the execution of the assignment and is further obliged to make all relevant documents available to CED.

8.2. With respect to assignments, the client guarantees that the collection, storage and provision to CED of the relevant information and documents are in compliance with the Personal Data Protection Act (Dutch: Wet Persoonsgegevens) and the Code of Conduct for the Processing of Personal Data by Insurers (Dutch: Gedragscode Verwerking Persoonsgegevens Verzekeringsbedrijf). The client also guarantees that CED is authorised to process and consult such data.

8.3. The client is obliged to compensate CED, its employees and third parties for any damages suffered by them resulting from failure to comply with the obligations described in article 8.1 and 8.2 and, if necessary, to indemnify CED in this regard.

Article 9 - Claims

9.1 Claims regarding services delivered by CED will only be processed by CED if received within 30 days of completion of delivery of such services by CED.

9.2 Claims with regard to invoices will only be processed by CED if they reach CED within 21 days.

9.3 The invoice date is determinative as regards the commencement date of the periods.

9.4 Claims must be submitted in writing and precisely describe the nature and grounds of the complaints. Claims not submitted in writing will not be processed.

9.5 The client will be deemed to have approved the services delivered and the invoice, on expiry of these periods. Subsequent claims will accordingly no longer be processed by CED.

9.6 The client's obligation to pay will only be suspended if and insofar as CED finds the claims to be justified.

9.7 If the claims are found to be justified by CED, CED will still continue to correctly perform its obligations under the agreement insofar as reasonably possible.

9.8 Return of an invoice on the ground of claims may only take place following CED's prior, written permission. CED determines the conditions for such return.

9.9 The client cannot unilaterally suspend nor wholly or partially dissolve the agreement by returning the invoice without CED's written permission.

Article 10 - Force majeure

10.1 CED will exercise due care in the implementation of the agreement. CED will always act in good faith and to the best of its knowledge and skill.

10.2 Breach cannot be attributed to CED if CED is not culpable, whether in law, by legal action or in terms of common practice.

10.3 CED reserves the right to perform its obligations under the agreement unless such performance is already permanently impossible, in which case the client is accordingly not entitled to terminate the agreement.

10.4 If, in the opinion of CED, a non-attributable breach is of a lasting nature, it may propose to the client that the existing agreement between the parties be dissolved together with a proposal for settlement thereof.

10.5 If work has been performed before a non-attributable breach as described in article 10.2 has arisen, CED reserves the right to claim proportional performance from the client.

10.6 The client must inform CED if it knows or suspects that it will find itself in a situation of force majeure in the near future.

Article 11 - Liability and implementation by third parties

11.1 CED executes the assignments which it has accepted or agreed to the best of its knowledge and ability while taking into account the best interests of the client. CED's obligation in executing these assignments is limited to a best efforts basis. CED can never be held liable for results not achieved.

11.2 The liability of CED is limited to damage to persons and goods, with the exception of damages to employees or goods of the client. CED is never liable for pure financial damages, consequential damage or indirect damage.

11.3 If CED, in connection with the performance of the assignment, is held liable vis-à-vis third parties for damage for which liability to the client is excluded or limited in the foregoing, the client shall be required to indemnify CED in respect thereof.

11.4 Given the nature, content and scope of tasks assigned to CED, the total liability of CED for damages suffered by the client arising from attributable breach, tort or otherwise is in any event limited to ten times the amount of the fee, remuneration or any other compensation agreed between the parties for the relevant assignment excluding the sales tax and excluding expenses incurred with regard to the implementation of the agreement, provided that in all cases the maximum amount applicable will be the amount CED is entitled to be paid out by its professional liability insurer(s).

11.5 If, for any reason whatsoever, no insurance is paid out, the liability is restricted to the fee invoiced by CED for the relevant assignment limited to a maximum being the amount of the excess applicable to the professional liability insurance of CED.

11.6 If the agreement is entered into by more than one client, each of them is jointly and severally liable for all amounts due under the agreement to CED.

11.7 The client shall refrain from activities which may impede CED in its completion of the agreement or conflict with CED's activities.

11.8 CED is entitled to have (part of) the work executed by third parties insofar as required for proper execution of the agreement. CED will do this in consultation with the client. CED commits its best efforts to performing the agreed obligations and achieving quality requirements.

11.9 CED is under no circumstances responsible for damage of any sort or form caused by the external experts it has engaged nor as a result of the use of aids or information or documentation derived from the client or from third parties.

11.10 CED accepts no liability for work carried out by third parties insofar as such parties have themselves entered into any agreements with the client.

11.11 If CED or third parties engaged by CED perform work in the context of the agreement at the client's premises or at a location designated by the client, the client will provide the reasonably required facilities for such employee free of charge.

11.12 Except in cases of intent or gross negligence on the part of CED, CED is not liable for and not obliged to provide any compensation for damages of any nature whatsoever including business interruption, damage to movable or immovable assets or damage to persons, with regard to the client or third parties.

11.13 CED is under no circumstances responsible for damages suffered by the client as a result of incorrect information or data in general originating from the client or from third parties, irrespective of whether such information or data in general may reasonably appear to be correct. CED is also in no way liable if the client fails to mention information of importance to the delivery of the service.
11.14 A legal claim for damages against CED lapses one year after both the damage and the party allegedly liable for the damage become known, and in any event five years after the event giving rise to the damage occurred.

Article 12 - Termination

12.1 The client is liable for compensation of the costs related to the preparation and execution of the agreement insofar as these are not included in the remuneration of CED on termination of the agreement by the client before commencement of the assignment or on termination before the assignment is completed.

12.2 Subject to Article 11.1, on termination of the agreement by the client CED is also entitled to a reasonable portion of the remuneration due to CED. The extent to which such remuneration is due to CED depends on the stage of completion or the expiry of time with regard to the assignment.

Article 13 - Dissolution

13.1 CED is entitled at all times to suspend its obligations under the agreement or partially or wholly dissolve the agreement:
a) if (an employee of) CED before or during implementation but after entering the agreement suspects on good grounds that the client will temporarily or permanently fail to perform its obligations under the agreement;
b) if, after entering the agreement, the client transfers its business to a third party;
c) if the client offers an employee of CED, before or during the implementation of the agreement, bribes or anything else of any financial value, with the aim of influencing the result of the service delivery;
d) if the client, before or during the execution of the agreement, is subject to the exercise of the preferential rights of the fiscus regarding its fixed assets;
e) if the client dies before or during implementation of the agreement or, in the case of a legal person or partnership, is dissolved;
f) if the client, before or during the execution of the agreement, is placed under administration, receivership, mentorship or supervision;
g) or if the client, before or during the implementation of the agreement, fails to comply with any other provision in law or under these general terms and conditions.

13.2 Suspension or extrajudicial dissolution as a result of the foregoing grounds for dissolution will take place by means of a written statement by CED.

13.3 If one or more of the aforementioned circumstances under Article 12 arise and if this results in any amount being owed by the client with regard to the services provided by CED, then CED reserves the right to claim this amount immediately and in full, without notice of default being required. This all without prejudice to CED’s rights to compensation for costs, damages and interests as provided in Articles 5, 6 and 7.

Article 14 - Non-disclosure

14.1 All information made available by CED or by the client with regard to the agreement or assignment is subject to a duty of non-disclosure applicable to both parties, unless the parties agree otherwise in writing or unless otherwise implied by the content, scope or purpose of the information.

Article 15 - (Intellectual) property

15.1 CED is, to the exclusion of all others, the owner of the data collected in the execution of the assignment and of all other reports, advice and suchlike produced by CED. CED is entitled to the exercise of all intellectual property rights, also after the assignment has been revoked or completed.

15.2 If a tender, quote or information is accompanied by estimates, plans, catalogues or other documentation, such remain at all times the intellectual property of CED. Neither the client nor third parties may make use thereof in publications, circulars or documents intended for third parties without prior, written consent and they must, on first request, be returned without delay to CED, this without prejudice to the other legal measures to safeguard its rights that are available to CED.

15.3 If the client fails to fulfil its obligations under the agreement it is not entitled to use, reproduce, store in a retrieval system or make public a document, as referred to in Article 14.2, in any form or by any means including electronically, mechanically, by photocopying or digital recording, without the prior written consent of CED.

15.4 If the client fails to perform any obligation to CED provided in this article the client is liable for immediate payment of a penalty of 1,000 euros per (part) day or per event, without prejudice to CED's right to recover the actual loss suffered by it from the client.

Article 16 - Applicable law

16.1 The formation, negotiation, implementation and performance of assignments is exclusively subject to Dutch law, if necessary with explicit exclusion of the law which according to international private law would apply to one of the parties.

Article 17 - Disputes

17.1 Disputes between parties concerning the formation, negotiation, implementation and performance of assignments will be settled by arbitration in accordance with the Rules of Arbitration of the Dutch Arbitration Institute (Dutch: Arbitragereglement van het Nederlands Arbitrage Instituut). The place of arbitration is Rotterdam.

17.2 CED is entitled - in exception to the provisions of the first paragraph - to have disputes decided by a regular court. If CED makes use of such entitlement, the Court of Rotterdam is, in first instance, the competent court in which to bring such dispute.